Anand Hari Rahate vs Anant Mahadeo Kotwal and another

This is a petition filed challenging the order passed by the learned 2nd Additional Principal Judge and Additional Sessions Judge, Greater Bombay, on 16th July 1986 and by which order, the learned Additional Sessions Judge allowed the Revision Application No. 315 of 1985 and set aside the order passed on 18th November 1985 by the Metropolitan Magistrate, 21st Court, Bandra, Bombay, in Case No. 45/N/84 on his file.

The petitioner had filed an application before the learned Magistrate u/s 145 of the Code of Criminal Procedure on the following allegations :

The premises, more particularly described in para 2 of the order, were in possession of the petitioner. The structure was divided into two parts. One part was used by the petitioner for the purposes of running a shop in the name and style of "Star Electrical works" which shop premises was used by the brother of the Petitioner. The remaining portion was used by the petitioner for the purposes of residence. The Respondent forcibly disposed the petitioner on 12th March 1983 while the petitioner was in actual possession of the premises. The petitioner, therefore, filed a proceeding u/s 145 of the Code of Criminal Procedure. The learned Metropolitan Magistrate passed preliminary order and issued notice to the Respondent. After the receipt of the notice, the Respondent appeared in the Court but did not file written statement. The matter was adjourned from time to time on which dates the petitioner continued to attend until 25th October 1983 when the petitioner''s application was dismissed by the learned Metropolitan Magistrate, 21st Court on the ground that the applicant and his Advocate were absent. The following order was passed :

"Applicant absent. His Advocate absent, Respondent absent. Advocate Singh present. Application is dismissed for non-prosecution hence filed."

On the petitioner''s coming to know about it, on the 1st December 1983, the petitioner filed an application before the learned Metropolitan Magistrate for restoration of the original application. The learned Magistrate passed an order issuing notice to the Respondent and it is the case of the petitioner that he thereby restored the original application to file.

After the issue of the notice, the Responded appeared in the Court and thereafter he remained absent continuously. The learned Magistrate, therefore, proceeded to record the evidence adduced on behalf of the applicant-petitioner on 29-10-1985 in the absence of the Responded. The matter came to be adjourned and on that day also the Responded remained absent and the result was an order dated 18-11-1985. By this order, the learned Magistrate held that the applicant was in possession of the said premises two months prior to 24-3-1983 and entitled to retain such possession until ousted by due process of law and do strictly forbid any disturbance of his possession in the meantime. It is further ordered, "as the applicant was forcibly dispossessed of the premises by the Respondent on 12-3-83, the applicant be put in actual possession of the disputed premises by the police. Inform Santa Cruz Police accordingly."

This order came to be challenged in the Revision Application No. 315 of 1985 and as stated earlier, the impugned order allowing the revision application and setting aside the order dated 18-11-1985 was passed.

The learned Advocates appearing for the petitioner and the Respondent No. 1 and the learned Additional Public Prosecutor have been heard by me.

It was urged on behalf of the petitioner that the view taken by the learned Additional Sessions Judge in the revision application was erroneous. He submits that once the proceedings u/s 145, Cr.P.C. are commenced and once a preliminary order as contemplated by the section is passed, it was in fact not open to the learned Magistrate to pass the order of dismissal in default. The procedure has been given in S. 145, Cr.P.C. which nowhere contemplates such an order of dismissal in default. I am inclined to accept this submission made on behalf of the petitioner. I find that there is no provision in the entire S. 145 which runs into 10 sub-sections under which an order for dismissal in default could be made. Therefore, the question of restoring the matter did not arise. At any rate, the learned Magistrate did pass an order of dismissal and when an application was made by the petitioner to him, he seems to have directed issue of notice to the Respondent, pursuant to which the Respondent did appear. That is what has been stated in the petition and there is no rejoinder filed to this petition challenging the averment made in that petition. That position is also not disputed before me in the course of the arguments. The notice was and could be constructed to be obviously with a view to enable the Responded to come before the Court to challenge the contentions of the petitioner as the petition to the knowledge of the Respondent had come to be dismissed earlier. The question of, therefore, the magistrate having no jurisdiction to restore a dismissed petition does not arise.

It is this aspect of the matter that has been dealt with by the learned Additional Sessions Judge in his judgment and he has relied upon, in this connection. Babu Ram v. Ramji Lal 1964 (2) Cri LJ 456 : AIR 1964 Pun 444. It is true that in that case it has been observed (para 6) :

"Unlike a Civil Court, a Criminal Court, other than a High Court, does not possess any inherent powers nor is there any provision in the Criminal Procedure Code, which governs the proceedings instituted in Criminal Courts to review its judgment or orders, not even in cases where the order is patently wrong or contrary to the provisions of law."

The learned counsel for the petitioner as well as the Respondent took me through the observations in this case. The view I am taking that there is no provision u/s 145 of the Code of Criminal Procedure under which such an application u/s 145 could be dismissed for default, finds support in the observations of the learned Judge :

"If this was the object of the legislature in authorising criminal courts to step in private disputes between the parties, it is obvious that once the Magistrate is informed that there is a likelihood of the breach of peace because of such a dispute, it is his duty to prevent breach of peace in the manner laid down by S. 145 of the Criminal Procedure Code. He is not relieved of that duty merely because the person at whose instance the proceedings were started fails to appear at one of the hearings or keeps away from the Court for some oblique motive ......."

The learned Counsel for the Respondent also relied upon the further observation made by the Court. The same read along with this, I find that they do not take view contrary to the one which I am taking. It appears that in that case, the complaint u/s 145 of the Code of Criminal Procedure came to be dismissed in default and instead of making an application for restoration, the applicant filed a fresh complaint as a result of which fresh preliminary order was passed. It appears that an argument was advanced that he should have got earlier restored and it is precisely in this context that the learned Judge proceeded to observe that there was no such provision of restoring the application and therein observation that the dismissal in default itself was not contemplated. Thus I find that the learned Additional Session Judge was not right in saying that there is no specific order passed the learned Magistrate setting aside his earlier order of dismissal and restoring the application to file. It is on this ground alone that he has chosen to allow the revision application. He has not examined the correctness or otherwise of the order of the learned Magistrate passed on the basis of the evidence that was recorded by the learned Magistrate. It appears, therefore, that the matter will have to be sent back to the learned Additional Sessions Judge for disposing it of in accordance with law.

The order passed by the learned Additional Sessions Judge, Greater Bombay on 16th July 1986 in Revision Application No. 315 of 1985 on his file is set aside and the matter is remanded to the Sessions Court for fresh hearing in the light of the observations made above. Rule made absolute accordingly.

Order accordingly.